ML052730298
| ML052730298 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 09/30/2005 |
| From: | Karlin A Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| 50-271-OLA, ASLBP 04-832-02-OLA, RAS 10529 | |
| Download: ML052730298 (6) | |
Text
RAS 10529 UNITED STATES OF AMERICA DOCKETED 09/30/05 NUCLEAR REGULATORY COMMISSION SERVED 09/30/05 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Alex S. Karlin, Chairman Anthony J. Baratta Lester S. Rubenstein In the Matter of Docket No. 50-271-OLA ENTERGY NUCLEAR VERMONT YANKEE ASLBP No. 04-832-02-OLA L.L.C.
and September 30, 2005 ENTERGY NUCLEAR OPERATIONS, INC.
(Vermont Yankee Nuclear Power Station)
ORDER (Regarding State of Vermonts Motion of Aug. 31, 2005)
On August 31, 2005, the Department of Public Service of the State of Vermont (State) filed a motion to compel the production of three e-mails that the NRC Staff had listed on its July 27, 2005 deliberative process privilege log.1 On September 12, 2005, the NRC Staff filed its opposition to the motion.2 Subsequently, the State requested oral argument on the motion, or alternatively, the opportunity to file a request for leave to file a reply brief,3 and the NRC Staff 1
Vermont Department of Public Service Motion to Compel Production of Certain NRC Staff Documents (undated, but filed August 31, 2005) at 1. The e-mails are listed on the NRC Staffs privilege log as ML051940095, ML051990237, & ML052060072. See NRC Privilege Log-Deliberative Process, (July 27, 2005).
2 NRC Staffs Answer to [State] Motion to Compel (Sept. 12, 2005).
3
[State] Request for Oral Argument or, Alternatively, for Leave to File a Request to File a Reply Brief (Sept. 15, 2005).
answered and opposed that motion.4 On September 29, 2005, the State filed another motion for leave to file a reply brief.5 The Board will hold the States motions for oral argument or a reply brief in abeyance pending receipt of the answers and briefing specified herein.6 Initially, the NRC Staff, as the privilege claimant, has the burden of establishing a prima facie case that these three documents qualify for the deliberative process privilege.7 While the parties have addressed two aspects of the deliberative process privilege (i.e., whether the document is predecisional and deliberative), there is no showing of the apparent third requirement - that a high ranking agency official personally reviewed the document and made the decision to invoke the deliberative process privilege.8 Rather than granting the motion on 4
NRC Staffs Answer to [States] Request for Oral Argument or, Alternatively, for Leave to File a Request to File a Reply Brief (Sept. 21, 2005).
5
[State] Motion for Leave to File a Reply Brief in Support of its Motion to Compel (Sept.
29, 2005).
6 The Board notes that the State has filed a second motion to compel concerning 25 additional documents on the NRC Staffs September 6, 2005 deliberative process privilege log.
[State] Motion to Compel Production of Certain NRC Staff Documents (II) (Sept. 29, 2005).
Similar issues may be presented.
7 See Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), CLI-94-5, 39 NRC 190, 198 (1994) (the government agency - here the NRC Staff - bears the initial burden of showing that the privilege should be invoked) (emphasis added); Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333, 1341 (1984) (the government agency bears the burden of demonstrating that the privilege is properly invoked)
(emphasis added); Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 868 (D.C. Cir.
1980) (the agency has the burden of establishing what deliberative process is involved). See also 10 C.F.R. § 2.336(b)(5).
8 See Kerr-McGee Chemical Corporation (West Chicago Rare Earths Facility), LBP 85-38, 22 NRC 604, 627 (1985) (requiring an affidavit from the head of the relevant agency of the State of Illinois); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP 83-72, 18 NRC 1221, 1223 (1983) (requiring an affidavit from the head of the Federal Emergency Management Agency), revd on other grounds, ALAB-773, 19 NRC 1333 (1984). See also NRC Staff Response to Issues Identified at First Case Management Conference at 8-10 (May 12, 2005), and Second Case Management Order, Appendix C, element 8 (July 8, 2005)
(unpublished), both in U.S. Dept of Energy (High Level Waste Repository: Pre-License
this basis, the Board believes it is appropriate to allow the NRC Staff to address it, and the State to respond. Accordingly, we direct them to proceed as follows:
- 1. On October 12, 2005, the NRC Staff shall submit the following:
A. A brief factual statement, covering each of the three documents, specifying the name, title, and organizational position (as of the date of his or her review and decision) of the highest ranking NRC official who, on or before the documents were listed on the NRCs July 27, 2005 deliberative process privilege log, personally reviewed and made the decision to invoke the deliberative process privilege for that document. If, after July 27, 2005, a second and higher ranking NRC official also personally reviewed and decided to invoke the privilege, the NRC Staff may also provide the same information concerning that person, and the date when it happened. The statement may also include a description of the process whereby the document was reviewed and the decision to assert the privilege was made.
B. A brief, limited to the presentation of the NRC Staffs position and arguments, if any, as to application of the third element of the deliberative process privilege in NRC adjudicatory proceedings and the adequacy of the rank of the NRC individual(s) who personally reviewed and made the decision to invoke the deliberative process privilege for the three documents.9 C. A brief factual statement specifying the name, title and organizational position (as of the date of the document) of the author and addressee(s) of each of the three documents.10 D. The statements and brief shall be combined and shall not exceed 12 pages, Application Matters), Docket No. PAPO-00, ASLBP No. 04-839-01-PAPO.
9 If the NRC Staff and the State agree that the individuals who personally reviewed the documents and made the decision to invoke the privilege meet the relevant legal requirements, then they should file a joint statement to that effect, and matter need not be briefed. The requirements of paragraphs 1.A, 1.C, and 2 still apply.
10 This information may assist the Board in assessing whether and how the documents were deliberative.
excluding any attached organizational charts (which are requested).
- 2. On October 12, 2005, the NRC Staff shall file copies of the three documents in question with the Board for its in camera review. No copies shall be sent to any other party.
Any objection to this in camera review shall be filed by October 6, 2006.
- 3. On October 19, 2005, the State shall file an answer to the NRC Staffs brief, which shall be limited to the issues specified in paragraph 1.B. The answer shall be limited to 10 pages.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD11
[Original signed by:]
Alex S. Karlin, Chairman Administrative Judge Rockville, Maryland September 30, 2005 11 Copies of this Memorandum and Order were sent this date by Internet e-mail, if available, to all participants or counsel for participants.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE L.L.C. ) Docket No. 50-271-OLA and ENTERGY NUCLEAR OPERATIONS, INC. )
)
Vermont Yankee Nuclear Power Station) )
)
(Operating License Amendment) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (REGARDING STATE OF VERMONTS MOTION OF AUG. 31, 2005) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Administrative Judge Adjudication Alex S. Karlin, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Administrative Judge Anthony J. Baratta Lester S. Rubenstein Atomic Safety and Licensing Board Panel 4270 E Country Villa Drive Mail Stop - T-3 F23 Tucson, AZ 85718 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Robert M. Weisman, Esq. Raymond Shadis Sherwin E. Turk, Esq. New England Coalition Jason C. Zorn, Esq. P.O. Box 98 Office of the General Counsel Edgecomb, ME 04556 Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
2 Docket No. 50-271-OLA LB ORDER (REGARDING STATE OF VERMONTS MOTION OF AUG. 31, 2005)
John M. Fulton, Esq. Sarah Hofmann, Esq.
Assistant General Counsel Special Counsel Entergy Nuclear Operations, Inc. Department of Public Service 440 Hamilton Avenue 112 State Street - Drawer 20 White Plains, NY 10601 Montpelier, VT 05620-2601 Anthony Z. Roisman, Esq. Jay E. Silberg, Esq.
National Legal Scholars Law Firm Matias F. Travieso-Diaz, Esq.
84 East Thetford Rd. Douglas J. Rosinski, Esq.
Lyme, NH 03768 Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037-1128 Jonathan M. Rund, Esq.
Law Clerk Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
[Original signed by Adria T. Byrdsong]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 30th day of September 2005